CLE Papers

Premises liability law

PREMISES LIABILITY LAW

JOE ESCOBEDO

Escobedo, Tippit & Cardenas, L.L.P.

3900 N. 10th Street, Suite 950

McAllen, Texas  78501

Telephone: (956) 618-3357

Telecopier: (956) 618-3361

State Bar of Texas

29th ANNUAL ADVANCED PERSONAL INJURY COURSE 2013

Dallas – July 10-12

San Antonio – August 7-9

Houston – August 28-30

CHAPTER 19

TABLE OF CONTENTS

I. INTRODUCTION

II. PREMISES LIABILITY V. NEGLIGENT ACTIVITY

III. PLAINTIFF’S LEGAL STATUS

A. Invitees

1. Actual or Constructive Knowledge

2. Condition Posed an Unreasonable Risk

3. Duty to Warn or Make Safe

B. Licensees

1. Express v. Implied License

2. Actual Knowledge Only

3. Duty to Warn or Make Safe

4. CPRC 75.001 et. seq. – Recreational Use Statute

C. Trespassers

Attractive – Nuisance Doctrine

IV. CHAPTER 95

A. Common Law Duties to Independent Contractors

B. Chapter 95 Duties to Independent Contractors

Application of the Statute

2. Elements of Proof Under Chapter 95

V. STATUS OF THE DEFENDANT

A. Current and Former Owners

B. Non-Owners

VI. LIABILITY FOR CRIMINAL CONDUCT

The Timberwalk Factors – Invitees

1. Proximity

2. Recency and Frequency

3. Similarity

4. Publicity

B. Mellon Mortgage – Was the Victim Foreseeable?

C. The Del Lago Opinion

VII. CONCLUSION

TABLE OF AUTHORITIES

Andrews v. Rodeo Square Apartments

2006 Tex. App. LEXIS 6415 (Tex. App. – Houston [1st Dist.] 2006, no pet.)

Arsement v. Spinnaker Exploration Co., LLC

400 F.3d 238 (5th Cir. 2005)

Ashabranner v. Hydrochem Industrial Serv., Inc.

2004 Tex. App. LEXIS 2782 (Tex. App. – Houston [14th Dist.] 2004, no pet.)

Bendigo v. City of Houston…………………………………………………………………………

178 S.W.3d 112 (Tex. App. – Houston [1st Dist.] 2005, no pet.)

Brinker v. Evans

370 S.W. 3d 416 (Tex. App. – Amarillo, 2012, pet. denied)

Brooks v. PRH Investments, Inc.

303 S.W.3d 920 (Tex. App. – Texarkana 2010, no pet.)

Brookshire Food Stores, LLC v. Allen………………………………………………………………

93 S.W.3d 897 (Tex. App. – Texarkana 2002, no pet.)

Brookshire Grocery Co. v. Taylor

222 S.W.3d 406 (Tex. 2006)

Buffalo Mar. Serv. v. Monteau

761 S.W.2d 416 (Tex. App. – Houston [14th Dist.] 1988, no writ)

Burkett v. Welborn

42 S.W.3d 282 (Tex. App. – Texarkana, 2001, no pet.)

CMH Homes, Inc. v. Daenen

15 S.W.3d 97 (Tex. 2000)

Callahan v. Vitesse Aviation, Svcs., LLC

2013 Tex. App. LEXIS 4095 (Tex. App. – Dallas March 29, 2013, no pet. h.)

Chi Energy, Inc. v. Urias

156 S.W.3d 873 (Tex. App. – El Paso 2005, pet. denied)

City of Bellmead v. Torres

89 S.W.3d 611 (Tex. 2002)

City of San Antonio v. Rodriguez

931 S.W.2d 535 (Tex. 1999) (per curiam)

City of Waco v. Kirwan

298 S.W.3 618 (Tex. 2009)

Clayton W. Williams, Jr., Inc. v. Olivo

952 S.W.2d 523 (Tex. 1997)

Del Lago Partners v. Smith

307 S.W.3d 762 (Tex. 2010)

Dyall v. Simpson Pasadena Paper Co.

152 S.W.3d 688 (Tex. App. – Houston [14th Dist.] 2004, pet denied)

Eaton v. R.B. George, Invs.

260 S.W.2d 587 (Tex. 1953)

Entergy Gulf States, Inc. v. Isom

143 S.W.3d 486 (Tex. App. – Beaumont 2004, pet. denied)

First Financial Dev. Corp. v. Hughston

797 S.W.2d 286 (Tex. App. – Corpus Christi 1990, writ denied)

Fisher v. Lee and Chang Partnership

16 S.W.3d 198 (Tex. App. – Houston [1st Dist.] 2000, pet. denied)

Fisher Constr. Co. v. Riggs

320 S.W. 2d 200 (Tex. Civ. App. – Houston 1959)

Francis v. Coastal Oil & Gas Corp.

130 S.W.3d 76 (Tex. App. – Houston [1st Dist.] 2005, no pet.)

Gatten v. McCarely

2013 Tex. App. LEXIS 838 (Tex. App. – Dallas 2013, no pet. h.)

General Mills Rests, Inc. v. Texas Wings, Inc.

12 S.W.3d 827 (Tex. App. – Dallas, 2000, no pet.)

Gorman v. Meng

335 S.W.3d 797 (Tex. App. – Dallas 2011, no pet.)

Gowen v. Willenborg

366 S.W.2d 695 (Tex. App. – Houston 1963, writ ref’d n.r.e.)

Guadalupe-Blanco River Auth. v. Pitonyak

84 S.W.3d 326 (Tex. App. – Corpus Christi 2002, no pet.)

H.E. Butt Grocery Co. v. Resendez

988 S.W.2d 218 (Tex. 1999) (per curiam)

Herceg v. Hustler Mag., Inc.

565 F.Supp. 802 (S.D. Tex. 1983)

Hernandez v. Brinker Int’l., Inc.

285 S.W.3d 152 (Tex. App. – Houston [14th Dist.] 2009, no pet.)

Howe v. Kroger Co.

598 S.W.2d 929 (Tex. App. – Dallas 1980, no writ)

Jai Jalaram Lodging Group, LLC v. Leribeus

225 S.W.3d 238 (Tex. App. – El Paso 2006, pet. denied)

James v. Cousins Props. Tex., L.P.

2008 Tex. App. LEXIS 3966 (Tex. App. – Austin May 30, 2008, no pet.)

Jane Doe 1 v. Pilgrim Rest Baptist Church

248 S.W.3d 831 (Tex. App. – Dallas 2008, pet denied)

Jenkins v. Occidental Chemical Corp.

2013 Tex. App. LEXIS 1469 (Tex. App. – Houston [1st Dist.] February 14, 2013, no pet. h.)

Johns v. Fort Worth Power & Light Co.

30 S.W.2d 549 (Tex. App. – Fort Worth 1930, writ ref’d)

Johnson County Sheriff’s Posse, Inc. v. Endsley

926 S.W.2d 284 (Tex. 1996)

Keetch v. Kroger, Co.

845 S.W.2d 264 (Tex. 1992)

Kelly v. Lin Television of Texas, L.P.

27 S.W.3d 564 (Tex. App. – Eastland 2000, pet. denied)

Koch Refining Co. v. Chapa

11 S.W.3d 153 (Tex. 1999)

Kofahl v. Randall’s Food & Drugs, Inc…………………………………………………………….

151 S.W.3d 679 (Tex. App. – Waco 2004, pet. denied)

Kopplin v. City of Garland

869 S.W.2d 433 (Tex. App. – Dallas 1993, writ denied)

Lefmark Management Co. v. Old

946 S.W.2d 52 (Tex. 1997)

Luna v. H&A Invs.

900 S.W.2d 735 (Tex. App. – Corpus Christi, 1994, no writ)

M.O. Dental Lab v. Rape

139 S.W.3d 671 (Tex. 2004)

Mass Marketing, Inc. v. Gaines…………………………………………………………………….

70 S.W.3d 261 (Tex. App. – San Antonio 2001, pet. denied)

Massie v. Copeland

233 S.W.2d 449 (Tex. 1950)

McClure v. Rich

95 S.W.3d 620 (Tex. App. – Dallas 2002, no pet.)

McMillan v. Parker

910 S.W.2d 616 (Tex. App. – Austin 1995, writ denied)

Mellon Mortgage Co. v. Holder

5 S.W.3d 654 (Tex. 1999)

Moeller v. Fort Worth Capital Corp.

610 S.W.2d 857 (Tex. App. – Fort Worth 1980, writ ref’d n.r.e.)

Moore v. Howmet Corp.

2005 U.S. Dist. LEXIS 6317 (Northern Dist. Tex. 2005)

Nagle v. Shelf

2005 U.S. Dist. LEXIS 34759 (Southern Dist. Texas 2005)

National Convenience Stores v. Erevia……………………………………………………………..

73 S.W.3d 518 (Tex. App. – Houston [1st Dist.] 2002, pet. denied)

Nixon v. Mr. Property Management Co.

690 S.W.2d 546 (Tex. 1985)

Padron v. L&M Properties

2003 Tex. App. LEXIS 1229 (Tex. App. – Eastland, 2003, no pet.)

Palacio v. AON Properties, Inc.

110 S.W.3d 493 (Tex. App. – Waco 2003, no pet.)

Peerenboom v. HSP Foods, Inc.

910 S.W.2d 156 (Tex. App. – Waco 1995, no writ)

Phillips v. Dow Chem. Co.

186 S.W.3d 121 (Tex. App. – Houston [1st Dist.] 2005, no pet.)

Pifer v. Muse

984 S.W.2d 739 (Tex. App. – Texarkana 1998, no pet.)

Redinger v. Living, Inc.

689 S.W.2d 415 (Tex. 1985)

Reliable Consultants, Inc. v. Jaquez

25 S.W.3d 336 (Tex. App. – Austin 2000, pet. denied)

Rosas v. Buddies Food Store

518 S.W.2d 534 (Tex. 1975)

Rueda v. Paschal

178 S.W.3d 107 (Tex. App. – Houston [1st Dist.] 2005, no pet.)

Sam Houston State University v. Anderson

2008 Tex. App. LEXIS 8614 (Tex. App. – Waco, Nov. 12, 2008, no pet.)

Science Spectrum, Inc. v. Martinez

941 S.W.2d 910 (Tex. 1997)

Scott & White Mem’l Hosp. v. Fair

310 S.W.3d 411 (Tex. 2010)

Shell Oil Co. v. Khan

138 S.W.3d 288 (Tex. 2004)

Sibai v. Wal-Mart Stores, Inc.

986 S.W.2d 702 (Tex. App. – Dallas, 1999, no pet.)

Spears v. Crown Central Petroleum Corp.

2005 U.S. App. LEXIS 9962 (5th Cir. 2005)

State v. Shumake

199 S.W.3d 279 (Tex. 2006)

State v. Williams

940 S.W.2d 583 (Tex. 1996)

State Dept. of Highways & Pub. Transp. v. Kitchen

867 S.W.2d 784 (Tex. 1993)

State Dept. of Hwys. & Pub. Transp. v. Payne

838 S.W.2d 235 (Tex. 1992)

Stephen F. Austin University v. Flynn

228 S.W.3d 653 (Tex. App. – Tex. 2007)

Stimpson v. Bartex Pipe Line Co.

36 S.W.2d 473 (Tex.Comm’n App. 1931, judgm’t adopted)

Strandberg v. Spectrum Office Bldg.

293 S.W.3d 736 (Tex. App. – San Antonio 2009, no pet.)

Sullivan v. City of Fort Worth

2011 Tex. App. LEXIS 3866 (Tex. App. – Forth Worth 2011, pet. denied)

Texas DOT v. Henson

843 S.W.2d 648 (Tex. App. – Houston [14th Dist.] 1992, writ denied)

Texas Real Estate Holdings, Inc. v. Quach

95 S.W.3d 399 (Tex. App. – Houston [1st Dist.] 2003, pet. denied)

Texas Utils. Elec. Co. v. Timmons

947 S.W.2d 191 (Tex. 1997)

Texas-Louisiana Power Co. v. Webster

91 S.W.2d 302 (Tex. 1936)

The Dow Chemical Company v. Abutahoun

2013 Tex. App. LEXIS 1265 (Tex. App. – Dallas Feb. 8, 2013, pet. filed)

Thornhill v. Ronnie’s I-45 Truck Stop, Inc.

944 S.W.2d 780 (Tex. App. – Beaumont 1997, writ dism’d)

Timberwalk Apartments Partners Inc. v. Cain

972 S.W.2d 749 (Tex. 1998)

Trammel Crow Central Texas Ltd. v. Gutierrez

267 S.W.3d 9 (Tex. 2008)

Univ. of Tex. – Pan Am. v. Aguilar

251 S.W.3d 511 (Tex. 2008) (per curiam)

University of Texas at Arlington v. Williams

2013 Tex. App. LEXIS 3985 (Tex. App. – Fort Worth, March 28, 2013, no pet. h.)

Wal-Mart Stores, Inc. v. Alexander

868 S.W.2d 322 (Tex. 1993)

Wal-Mart v. Chavez

81 S.W. 3d 862 (Tex. App. – San Antonio, 2002, no pet.)

Wal-Mart Stores, Inc. v. Gonzalez

968 S.W.2d 934 (Tex. 1998)

Wal-Mart Stores v. Miller

102 S.W.3d 706 (Tex. 2003)

Wal-Mart v. Reece

81 S.W.3d 812 (Tex. 2002)

Wal-Mart v. Spates

186 S.W.3d 566 (Tex. 2006)

Wal-Mart Stores, Inc. v. Diaz………………………………………………………………………

109 S.W.3d 584 (Tex. App. – Fort Worth 2003, no pet.)

Wal-Mart Stores, Inc. v. Garza

27, S.W.3d 64 (Tex. App. – San Antonio 2000, pet. denied)

Wal-Mart Stores, Inc. v. Rosa………………………………………………………………………

52 S.W.3d 842 (Tex. App. – San Antonio 2001, pet. denied)

Wal-Mart Stores v. Tinsley………………………………………………………………………….

998 S.W.2d 664 (Tex. App. – Texarkana 1999, pet. denied)

Way v. Boy Scouts of Am.

856 S.W.2d 433 (Tex. App. – Dallas 1993, writ denied)

Weaver v. KFC Mgmt., Inc.

750 S.W.2d 24 (Tex. App. – Dallas 1988, writ denied)

West v. SMG

318 S.W.3 430 (Tex. App. – Houston [1st Dist.] 2010, no pet.)

Wilson v. Patel

2004 Tex. App. LEXIS 2614 (Tex. App. – Austin 2004, no pet.)

Wright v. Wal-Mart Stores………………………………………………………………………….

73 S.W.3d 552 (Tex. App. – Houston [1st Dist.] 2002, no pet.)

Wyckoff v. George C. Fuller Contracting, Co.

357 S.W.3d 157 (Tex. App. – Dallas, 2011, no pet.)

Tex. Civ. Prac. & Rem. Code § 75.001, et seq.

Tex. Civ. Prac. & Rem. Code § 95.001, et seq.

I. INTRODUCTION

A premises liability case involves an injury allegedly caused by a condition on property as opposed to a case wherein the injury was allegedly caused by a negligent activity.  Premises liability is based on the principles of negligence, but the specific duties owed by an owner or occupier of land to an injured party is established by premises liability law. 

There are numerous issues that may arise in premises cases, including the following:

Is the case a premises case as opposed to a negligent activity?

What is the legal status of plaintiff, that is, is the plaintiff an invitee, a licensee or a trespasser?

Is the duty owed to plaintiff impacted by statute or special doctrine?

What is the status of the defendant (owner or occupier) as it relates to the property in question?

Does the case involve criminal conduct by a third party?

II. PREMISES LIABILITY V. NEGLIGENT ACTIVITY

Whenever an injury occurs on premises, the first question that should be addressed is whether the case involves premises liability or negligent activity.  While premises liability cases are negligence cases, the extent of the duty owed by the defendant generally depends on the status of the injured person at the time of the incident.  Premises liability cases have additional requirements that are not applicable to ordinary negligence cases; therefore, premises liability cases are often harder to prosecute.

The Texas Supreme Court, in Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992), set out the differences between premises liability and negligent activity.  In Keetch, the plaintiff slipped on a substance that had been sprayed on plants in a grocery store approximately a half-hour prior to the incident.  The Court held that because there was no “ongoing activity” at the time that the plaintiff was injured, the plaintiff’s case was a premises liability case and not a negligent activity case.  Id. The plaintiff had been injured by a condition created by the spraying of the plants but was not injured by the activity of spraying. Id.  The Court noted that the key factor in determining whether the case is a negligent activity is whether the activity that caused the injury was ongoing at the time of the injury, as opposed to a condition that was caused by an activity that occurred prior to the injury.  Id.

Examples of cases found to involve negligent activity include:

Injury occurred when box was dropped on plaintiff’s head while it was being removed from the shelf. Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 67 (Tex. App. – San Antonio 2000, pet. denied).

Injury occurred when employee was moving merchandise from one cart to another.  Sibai v. Wal-Mart Stores, Inc., 986 S.W.2d 702, 707 (Tex. App. – Dallas, 1999, no pet.).

Injuries arising from a condition on land can only be redressed under the theory of premises liability and this cannot be avoided through “adroit phrasing of the pleadings to encompass design defects, per se negligence or any other theory of negligence”.  Brinker v. Evans, 370 S.W.3d 416, 421 (Tex. App. – Amarillo, 2012, pet. denied).

III. PLAINTIFF’S LEGAL STATUS

In a premises liability case, the duty that the defendant owes the plaintiff depends on the plaintiff’s status at the time and place of the injury; was the plaintiff an invitee, a licensee or a trespasser?  See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 554 (Tex. 1985).

There are circumstances in which Texas courts have found the plaintiff’s status to be irrelevant in determining the duty owed by the landowner. See Nixon, 690 S.W.2d at 549 (statute or ordinance created a duty to prevent injury to a class of persons that the injured plaintiff belonged to); Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 305 (Tex. 1936) (easement holder, because it does not have exclusive possession of the property, owed trespasser a duty of ordinary care); Mellon Mortgage Co. v. Holder, 5 S.W.3d 654 (Tex. 1999) (supreme court stated it was unnecessary to address status of the plaintiff, who had been abducted and taken to the parking garage, because she was an “unforeseeable victim”).

Invitees

An invitee is someone who enters the premises with the owner’s express or implied knowledge and for the mutual benefit of both parties. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975).  Invitees include business patrons, club or church members, hotel guests, owner’s employees, delivery persons, meter readers and mail carriers.

For an invitee to recover under premises liability, he must prove the following elements:

The defendant had actual or constructive knowledge of a condition on the premises that posed an unreasonable risk of harm.

The defendant failed to exercise reasonable care by both failing to adequately warn of the condition and failing to make the condition reasonably safe.

The defendant’s failure proximately caused the injury to the invitee.

Rosas, 518 S.W.2d at 536-537.

Actual or Constructive Knowledge

The actual knowledge component can be difficult to establish.  It includes what a defendant actually knows about the condition because he has seen it or has been told about it. Walmart v. Chavez, 81 S.W3d 862, 864 (Tex. App. – San Antonio 2002, no pet.)  Actual knowledge can be established through circumstantial evidence, such as proof of prior incidents.  Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 514 (Tex. 2008) (per curiam).  The lack of prior incidents can be used by the defendant to prove it did not have actual knowledge.  Id.  The fact that the land owner created the condition creates an inference of knowledge, but the jury must still find that the defendant knew or should have known of the dangerous condition.  Keetch, 845 S.W.2d at 265.  If an owner took precautionary measures to reduce a dangerous condition, the owner will be charged with actual notice of the condition.  See Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 343 (Tex. App. – Austin 2000, pet. denied) (jury could infer actual knowledge from Defendant’s precautionary measures coupled with numerous previous instances where people had stumbled on the step).

  

Proof of constructive knowledge requires evidence that the condition existed long enough for the owner to discover it through reasonable inspection.  CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-103 (Tex. 2000).  This is referred to as the “time-notice rule” and is often a point of contention in cases involving constructive knowledge.  Walmart v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam) (plaintiff’s claim that a plastic soda ring was on the floor for 30-45 near a store employee was not sufficient to prove constructive knowledge).  Constructive knowledge is not proven when the evidence establishes only the possibility that the dangerous condition existed long enough to give the defendant an opportunity to discover it. Walmart v. Reece, 81 S.W.3d 812, 816 (Tex. 2002).  Further, even if it appears that the substance on the floor had been there for a long time, the plaintiff cannot establish constructive knowledge absent actual proof of the length of time.  Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 937-38 (Tex. 1998) (despite fact that macaroni salad on floor had cart tracks and footprints on it at the time the plaintiff was injured, plaintiff could not recover because plaintiff did not have personal knowledge of the length of time the macaroni salad had been on the floor).  In Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 409 (Tex. 2006), the supreme court held that the grocery store did not have constructive knowledge of ice on the floor because the ice had not fully melted.

More often than not, Texas’ appellate courts have ruled that the plaintiff’s evidence was insufficient to charge the defendant with constructive knowledge. See CMH Homes, 15 S.W.3d at 103; Reece, 81 S.W.3d at 816; Wal-Mart Stores, Inc. v. Rosa, 52 S.W.3d 842, 844 (Tex. App. – San Antonio 2001, pet. denied) (discoloration of banana and proximity of store’s employees were not sufficient evidence to support constructive knowledge); Wright v. Wal-Mart Stores, 73 S.W.3d 552, 555-56 (Tex. App. – Houston [1st Dist.] 2002, no pet.) (defendant did not have constructive knowledge of food on floor simply because employee was working within 20-30 feet); Brookshire Food Stores, LLC v. Allen, 93 S.W.3d 897, 901 (Tex. App. – Texarkana 2002, no pet.) (insufficient evidence of constructive knowledge where grapes were not on floor longer than fifteen minutes because store director testified he did walk-through fifteen minutes before plaintiff fell); Wal-Mart Stores, Inc. v. Diaz, 109 S.W.3d 584, 589 (Tex. App. – Fort Worth 2003, no pet.) (no evidence that store employees inspected aisle before accident, therefore, no evidence of constructive knowledge); Bendigo v. City of Houston, 178 S.W.3d 112, 115-16 (Tex. App. – Houston [1st Dist.] 2005, no pet.) (plaintiff’s claim that trash could have been on the stairs for 10-12 hours following afternoon rush was insufficient to prove constructive knowledge);

In the following cases, the appellate courts found that there was sufficient evidence to prove constructive knowledge:  Wal-Mart Stores v. Tinsley, 998 S.W.2d 664, 669 (Tex. App. – Texarkana 1999, pet. denied) (size of puddle and fact that leaked from ceiling was sufficient evidence of longevity); Mass Marketing, Inc. v. Gaines, 70 S.W.3d 261, 264 (Tex. App. – San Antonio 2001, pet. denied) (evidence of child eating grapes in checkout aisle sufficient to charge defendant with notice because manager and cashier both saw child eating grapes and were aware of danger); National Convenience Stores v. Erevia, 73 S.W.3d 518, 523 (Tex. App. – Houston [1st Dist.] 2002, pet. denied) (self-service display held to be the subject dangerous condition and jury could infer knowledge from manager’s testimony that ice falling from display was common); Kofahl v. Randall’s Food & Drugs, Inc., 151 S.W.3d 679, 681-82 (Tex. App. – Waco 2004, pet. denied) (in appeal from granting of summary judgment, court found evidence large puddle was tacky and gummy as if starting to dry up was more than a scintilla of evidence to show constructive knowledge).

Unlike a licensee, an invitee does not have to prove that he did not have knowledge of the dangerous condition.  State Dept. of Hwys. & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). The plaintiff’s knowledge is relevant, however, to the issue of proportionate responsibility. Strandberg v. Spectrum Office Bldg., 293 S.W.3d 736, 740 (Tex. App. – San Antonio 2009, no pet.).

Condition Posed an Unreasonable Risk

An additional element of proof is that the subject condition posed an unreasonable risk of harm. Rosas, 518 S.W.2d at 537.  Given the fact that the defendant must have knowledge of the unreasonably dangerous condition, the question of what is the condition in question is often in dispute.  In the Brookshire Grocery case, the plaintiff argued that the soft drink dispenser itself, not just the ice she slipped upon, was an unreasonable dangerous condition. Brookshire Grocery, 222 S.W.3d at 407.  A grocery employee had testified that ice fell off the dispenser on a daily basis. Id. The supreme court disagreed with the plaintiff and held that the ice on the floor, not the dispenser, was the condition in question in that case.  Id. at 409.  See also H.E. Butt  Grocery Co. v. Resendez, 988 S.W.2d 218, 219 (Tex. 1999) (per curiam) (supreme court held that grape on the floor, not the display, was the subject condition); City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536-37 (Tex. 1996) (supreme court held that on retrial the jury should be instructed that the allegedly dangerous condition was the water that Rodriguez claims was on the floor, not the leaky roof); Cf. National Convenience Stores, 73 S.W.3d at 523 (court held self-service display was the subject dangerous condition and jury could infer knowledge from manager’s testimony that ice falling from display was common).

Courts have determined that there are some conditions which, as a matter of law, do not pose an unreasonable risk of harm:

Icy bridge during cold rainy weather. State Dept. of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993), (per curiam).

Mud that accumulates naturally on outdoor concrete slab. M.O. Dental Lab. v. Rape, 139 S.W.3d 671, 675 (Tex. 2004).

Naturally occurring ice that accumulates without assistance or involvement of unnatural contact.  Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 414 (Tex. 2010); Callahan v. Vitesse Aviation Svcs., LLC, 2013 Tex. App. LEXIS 4095 at *22-23 (Tex. App. – Dallas March 29, 2013, no pet. h.). 

Dirt in its natural state.  See Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex. 1996).

3. Duty to Warn or Make Safe

The defendant’s duty to an invitee is to use reasonable care to warn or to make the condition safe. Burkett v. Welborn, 42 S.W.3d 282, 289 (Tex. App. – Texarkana, 2001, no pet.).  As a result of the duty involving two alternative methods of making the dangerous condition safe (warning of or eliminating the danger), the plaintiff must establish that the defendant did neither to recover.  Rodriguez, 931 S.W.2d at 536 (jury instruction that stated that the City was negligent if it failed to adequately warn or make the condition reasonably safe was reversible error). See also Brooks v. PRH Investments, Inc., 303 S.W.3d 920, 925 (Tex. App. – Texarkana 2010, no pet.) (if evidence conclusively established that owner adequately warned the plaintiff of the condition, the owner cannot be found negligent as a matter of law).

As seen in Section IV infra, a defendant property owner’s duty to an independent contractor and his employees is now controlled by Chapter 95 of the Texas Civil Practices & Remedies Code.

Licensees

The critical difference between licensees and invitees is that the licensee’s presence on the property does not provide a mutual benefit to the licensee and the property owner.  The licensee is on the property with permission from the owner but for the licensee’s own convenience or on business for someone other than the property owner.  Licensees typically include social guests, loiterers, solicitors and salesmen, members of the property owner’s household, public servants performing their duty and volunteer rescuers.   

The elements of a cause of action for premises liability brought by a licensee are the following:

The defendant had actual knowledge of a condition on the premises that posed an unreasonable risk of harm and the plaintiff did not have similar knowledge.

The defendant failed to exercise reasonable care by both failing to adequately warn of the condition and failing to make the condition reasonably safe.

The defendant’s failure proximately caused the injury to the licensee.

Wal-mart Stores v. Miller, 102 S.W.3d 706, 709 (Tex. 2003).

Express v. Implied License

Usually, whether the plaintiff had permission to be on the property is not a matter in dispute; however, there are circumstances that may arise where the plaintiff is found to have an “implied license” to enter the premises.  An implied license may arise when there are prior dealings between the parties that lead the licensee to believe he is allowed to enter the property.  See Pifer v. Muse, 984 S.W.2d 739, 742 (Tex. App. – Texarkana 1998, no pet.) (holding that prior dealings establish an implied license in fact, whereas a volunteer rescuer is an implied licensee in law).  A person who would otherwise be a trespasser can be found to have an implied license when the property owner tolerates his repeated trespassing.  General Mills Rests., Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 835 (Tex. App. – Dallas, 2000, no pet.).  (finding that consent will only be implied if the owner has actual knowledge that people have been entering land and fails to take reasonable steps to prevent or discourage them from entering).  A trespasser who enters property because of an emergency may be found to have an implied license.  See Buffalo Mar. Serv. v. Monteau, 761 S.W.2d 416, 420 (Tex. App. – Houston [14th Dist.] 1988, no writ) (boat owner who tied his boat to a barge during a hurricane was not a trespasser).

2. Actual Knowledge Only

Unlike a case brought by an invitee, a licensee cannot prove his case with constructive knowledge; rather, a licensee must establish that the property owner had actual knowledge of the dangerous condition on the premises.  McClure v. Rich, 95 S.W.3d 620, 624 (Tex. App. – Dallas 2002, no pet.). Evidence that establishes that the defendant created the dangerous condition is sufficient to establish actual knowledge.  Texas DOT v. Henson, 843 S.W.2d 648, 652 (Tex. App. – Houston [14th Dist.] 1992, writ denied).  Further, to recover a licensee must establish that he did not have actual knowledge of the dangerous condition on the premises.  Miller, 102 S.W.3d at 709.  A licensee has been found to have actual knowledge of the dangerous condition if the condition was perceptible to him, or he could infer the existence of the condition from facts within her present or past knowledge.  Id.

Duty to Warn or Make Safe

The defendant’s duty to a licensee is to use reasonable care to warn or to make the condition safe. State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996). The duty to warn does not require the defendant to warn the licensee of conditions that are perceptible to the licensee.  Miller, 102 S.W.3d at 709. As a result of the duty involving two alternative methods of making the dangerous condition safe (warning of or eliminating the danger), the plaintiff must establish that the defendant did neither to recover.  Williams, 940 S.W.2d at 584.

CPRC 75.001 et. seq – Recreational Use Statute

Chapter 75 of the Texas Civil Practice & Remedies Code provides protection to owners of agricultural land or “other real property” from liability to social guests and licensees who are permitted on the land for recreational purposes.  TEX CIV. PRAC. & REM. CODE § 75.002. Courts have held that the defendant must be in possession (ie. control) of the land at the time of the injury. See Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 340 (Tex. App. – Corpus Christi 2002, no pet.) (if Defendant had control over the bayou where injury occurred, then Defendant had right to grant or deny access and the statute would apply to limit Defendant’s liability).  However, in Stephen F. Austin University v. Flynn, 228 S.W.3d 653, 658 (Tex. App. – Tex. 2007), the supreme court decided that even though the injury occurred on an easement that the University had given for use as a recreational trail, it retained ownership, and as the owner it was protected by the statute.

The statute provides that an owner of real property is entitled to the statute’s protection when it gives “permission to another to enter for recreation”. TEX CIV. PRAC. & REM. CODE § 75.002(c).  Permission may be implied from a landowner’s knowledge of, and acquiescience in, the public’s use of its land for recreational purposes. Flynn, 228 S.W.3d at 658.

The statute covers agricultural land used for recreational use and all types of “real property other than agricultural land” used for recreational purposes. The statute does not define the types of property that are included in “real property other than agricultural land”.  However, whether the incident occurred on “agricultural land” or on “real property other than agricultural land” will have an impact on the application of the statute as follows:

Agricultural land – statute applies to those given permission (licensees) to enter the premises and those invited (social guests) to enter the premises for recreation.

Real property other than agricultural land – statute applies only to those given permission (licensee) to enter the premises for recreation.

TEX CIV. PRAC. & REM. CODE § 75.002(b), (c).  The statute does not apply to social guests invited onto “real property other than agricultural land” for recreation.  McMillan v. Parker, 910 S.W.2d 616, 619 (Tex. App. – Austin 1995, writ denied). The statutory limitation was meant as an inducement for owners of certain types of private land to allow members of the general public to use land for recreation. Id. at 618. 

The term “recreation” is defined very broadly to essentially include any activity related to enjoying nature and the outdoors.  TEX CIV. PRAC. & REM. CODE § 75.001(3).  The statutory list is not exclusive. Kopplin, 869 S.W.2d at 441.  The supreme court has held that it is not the landowner’s or the injured party’s intent for the land that matters but what the injured party was doing at the time of the injury that controls. City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002). While recreation is defined broadly, it does not encompass the following:

An outdoor wedding. Sullivan v. City of Fort Worth, 2011 Tex.App. LEXIS 3866 (Tex. App. – Fort Worth, 2011, pet. denied);

Spectating an outdoor soccer game. University of Texas at Arlington v. Williams, 2013 Tex. App. LEXIS 3985, at *8-9 (Tex. App. – Fort Worth, March 28, 2013, no pet. h.); contra Sam Houston State University v. Anderson, 2008 Tex. App. LEXIS 8614, at *8-9 (Tex. App. – Waco, Nov. 12, 2008, no. pet.) (held that plaintiff sitting on outdoor bleachers watching a baseball game was recreation pursuant to the statute).

The statute distinguishes between private and governmental landowners.  Whether the statute applies to a private landowner is governed by three tests:

Did the private landowner charge for entry? If no, then statute applies;

If the private landowner charged a limited amount for entry, then statute applies only if total charges collected in previous calendar year for all recreational use of the entire premises are not more than 20 times the total amount of ad valorem taxes imposed on the premises for previous calendar year (the “financial-ratio test”); or,

In the case of agricultural land, did the private landowner have adequate liability insurance as described in section 75.004(a)?

TEX CIV. PRAC. & REM. CODE § 75.003(c).  The purpose of the “financial ratio” test is to prevent landowners from taking advantage of the statute by engaging in commercial recreation for profit.  McMillan, 910 S.W.2d at 619. If the defendant is a governmental landowner, the statute applies regardless of whether the plaintiff is charged a fee to enter the premises, and regardless of whether the governmental landowner has liability insurance.  Id.; See also TEX CIV. PRAC. & REM. CODE § 75.004(d). 

In State v. Shumake, 199 S.W.3d 279, 281 (Tex. 2006), the supreme court held that the recreational use statute does not reinstate immunity for premises liability claims but only raises the burden of proof by classifying a recreational user of government owned property as trespassers.

The statute protects covered owners in two distinct ways. First, the statute defines the applicable standard of care owed to recreational users of the property as essentially the same standard of care that is owed to a trespasser; that is, the plaintiff must establish that defendant breached its duty by showing the defendant acted with gross negligence. TEX CIV. PRAC. & REM. CODE § 75.002(b), (c). This standard applies both to agricultural land and “real property other than agricultural land” used for recreational purposes.  Id. Section 75.002(d) provides that the statute will not protect owners who have been grossly negligent or acted with malicious intent, or bad faith.  TEX CIV. PRAC. & REM. CODE § 75.002(d). The Texas Supreme Court recognized in Shumake that although the recreational use statute references a trespasser standard, it actually creates a specialized standard of care which dictates that landowners must refrain from gross negligence, or from acting with malicious intent or in bad faith.  Shumake, 199 S.W.3d at 286-87.

The other protection that the statute provides is a cap for damages that the recreational user can recover for injuries occurring on agricultural land used for recreational purposes that are covered under an insurance contract.  TEX CIV. PRAC. & REM. CODE § 75.004(a).  However, the statute does not place a cap on damages for injuries occurring on real property, other than agricultural land, used for recreation. 

The supreme court has distinguished between injuries cause by natural conditions and those caused by man-made conditions.  In Shumake, the supreme court stated that a landowner has no duty to warn or protect a trespasser from obvious defects and dangers such as a cliff, a rushing river or a hidden rattlesnake. Shumake, 199 S.W.3d at 288.  Then, in City of Waco v. Kirwan, 298 S.W.3d 618 (Tex. 2009), the supreme court dealt with the death of a college student caused by falling off a cliff.  Id. at 620.  To get to the cliff’s edge, the student climbed over a low rock wall constructed by the City which had a sign warning against going beyond the wall. Id.  The court held that landowners under the statute generally do not owe a duty to protect or warn against dangers of natural conditions on the land and, therefore, may not ordinarily be held to have been grossly negligent for failing to have done so. Id. at 626. The supreme court made it clear that its holding was fact-specific, and that it was not holding that a party may never be liable for gross negligence related to a natural condition.  Id. at 627.

Lastly, the statute limits the applicability of the attractive-nuisance doctrine, stating that no trespasser over the age of 16 can bring an attractive nuisance lawsuit  for injuries arising on agricultural land used for recreation.  TEX CIV. PRAC. & REM. CODE § 75.003(b).  There is no similar provision for “real property other than agricultural land”.

C. Trespassers

A trespasser is someone who enters another’s property without any lawful right, or express or implied permission and not for the performance of any duties for the owner but merely for his own purposes.  Weaver v. KFC Mgmt., Inc., 750 S.W.2d 24, 27 (Tex. App. – Dallas 1988, writ denied).  The plaintiff’s status as a trespasser usually comes up as a defense raised by the property owner when sued by a plaintiff who claims to be either an invitee or licensee.  Persons typically found to be trespassers include: subtenants who do not have permission from the owner to sublease; friends of employees without permission to be on the property; and hunters without permission.

A person can enter the property as an invitee or licensee and become a trespasser by making an unforeseen departure from one part of the premises to another without invitation. Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 161-62 (Tex. App. – Waco 1995, no writ) (holding that off-duty employee raped by off-duty co-employee in dumpster enclosure was a trespasser).  An invitee or licensee does not become a trespasser if the owner can reasonably foresee that the invitee or licensee will use part of the premises without permission, or for a purpose other than the one permitted.  See Fisher Constr. Co. v. Riggs, 320 S.W. 2d 200, 205-06 (Tex. Civ. App. – Houston 1959) rev’d on other grounds, 325 S.W. 2d 126 (Tex. 1959) (general contractor should reasonably anticipate that employees of its subcontractors might take a shortcut through vacant store space). 

The property owner only owes a trespasser the duty not to injure him willfully, wantonly or through gross negligence.  Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997).

Attractive-Nuisance Doctrine

Under the attractive-nuisance doctrine, when a young child trespasses because the premises are attractive to the child, the law implies an invitation to enter the property.  Timmons, 947 S.W.2d at 193.  When the doctrine applies, the property owner owes a trespassing child the same duty it owes an invitee. Id. The elements of a cause of action for premises liability under the attractive nuisance doctrine are the following:

The defendant knew or should have known there was an artificial condition on the premises and children were likely to trespass in that area.

The defendant knew or should have known the artificial condition posed an unreasonable risk of death or serious bodily harm to children.

The plaintiff, because of his youth, did not discover the artificial condition, realize the risk involved in meddling with it, or realize the risk involved in coming within the area made dangerous by the condition.

The utility to the defendant of maintaining the artificial condition and the burden of eliminating the danger were slight compared to the risk to the children.

The defendant’s failure to exercise reasonable care to eliminate the danger or otherwise protect the plaintiff proximately caused the plaintiff’s injury.

Timmons, 947 S.W.2d at 193-194. 

The attractive-nuisance doctrine applies only to artificial conditions, not to natural conditions. Gowen v. Willenborg, 366 S.W.2d 695, 697 (Tex. App. – Houston 1963, writ ref’d n.r.e.)  The following artificial conditions have been found to be attractive nuisances:

Open caliche pit. Massie v. Copeland, 233 S.W.2d 449, 451, (Tex. 1950).

Billboards. Gowen, 366 S.W.2d at 697.

Transmission towers. Timmons, 947 S.W.2d at 192.

Large irrigation pipes. Luna v. H&A Invs., 900 S.W.2d 735,737 (Tex. App. – Corpus Christi, 1994, no writ).

Cattle dipping vats. Eaton v. R.B. George, Invs., 260 S.W.2d 587,589-90 (Tex. 1953)

As a matter of law, the following man-made conditions did not subject the land owner to liability under the attractive nuisance doctrine:

Playground equipment. Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex. App. – Dallas 1993, writ denied).

Advertisements. Way v. Boy Scouts of Am., 856 S.W.2d 230, 238 (Tex. App. – Dallas 1993, writ denied.

Magazines. Herceg v. Hustler Mag., Inc., 565 F.Supp. 802, 803 (S.D. Tex. 1983)

The element that is most often litigated is whether the injured child had the requisite lack of understanding of the condition and its risk as a result of his youth.  Whether the injured person was of such youth and immaturity to render him unable to appreciate the dangerous condition is a question of law.  Massie, 233 S.W.2d at 454. The following factors have been held to be relevant in making this determination:  whether the child had a mental incapacity; whether the child was unusually bright or slow for her age; and whether the condition involved a hidden, concealed or latent danger.  Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 492 (Tex. App. – Beaumont 2004, pet. denied); Kopplin, 869 S.W.2d at 441.  Age alone is not determinative; children as young as six-years old have been found capable of appreciating the risk.  Stimpson v. Bartex Pipe Line Co., 36 S.W.2d 473, 477 (Tex.Comm’nApp. 1931, judgm’t adopted).  On the other hand, a fifteen-year old was found not to appreciate the danger of climbing a ladder to an electrical tower that did not have barricades or warnings.  Johns v. Fort Worth Power & Light Co., 30 S.W.2d 549, 557 (Tex. App. – Fort Worth 1930, writ ref’d).  However, the great majority of cases applying the doctrine involved children younger than twelve years.  Timmons, 947 S.W.2d at 196.  In Timmons, the Texas Supreme Court concluded that even without a warning sign, a 14 year old boy should have known that electrical wires should be avoided. Id. at 194.

The Recreational Use Statute described supra provides an age limit for persons who can bring an attractive nuisance claim falling within the scope of the statute.

IV. CHAPTER 95

A. Common Law Duties to Independent Contractors

The general rule in Texas is that a premises owner

is not subject to liability for injuries to an independent contractor because the premises owner does not owe a duty to assure that the independent contractor performs his work in a safe manner.  Redinger v. Living, Inc., 689 S.W2d 415, 417-18 (Tex. 1985).  This general rule is subject to two exceptions both arising from the owner’s failure to keep the premises safe:  (1) claims arising from a premises defect; and (2) claims arising from a negligent activity on the premises.  Id.  Relating to the first exception, a premises owner can only be liable where the dangerous condition was in existence prior to the independent contractor entering the premises and was not created by the activity of the contractor. Id. As for the second exception, a property owner who exercised control over the independent contractor’s work could be subject to liability for negligence.

Under the common law, an independent contractor hired to perform work on the property owner’s premises would be classified as an invitee.  As such, the independent contractor (or his employees) in a premises liability case would have to prove that the property owner knew or should have known of the dangerous condition.  Further, control would not have been an issue in a premises liability suit brought by an independent contractor against a premises owner prior to Chapter 95.

As detailed below, Chapter 95 is a departure from the common law because it eliminates the constructive knowledge element in what would otherwise be a case involving an invitee and requires the exercise of control by the property owner.

B. Chapter 95 Duties to Independent Contractors

Application of the Statute

Chapter 95 applies to a claim:

against a property owner, contractor, or subcontractor for personal injury, death or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and

that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates or modifies the improvement.

TEX CIV. PRAC. & REM. CODE § 95.002.

If the claim falls within the scope of section 95.002, the statute provides that the property owner is not liable for claims for injury, death or property damage to a contractor or subcontractor (or their employees) arising from the failure to provide a safe workplace unless:

the property owner exercises or retains some control over the manner in which the work is done, other than the right to stop or start work or to inspect progress or receive reports; and

the property owner had actual knowledge of the danger or condition resulting in the injury and failed to adequately warn.

TEX CIV. PRAC. & REM. CODE § 95.003.

Courts have held that when Chapter 95 applies it is the plaintiff’s exclusive remedy and applies to all causes of action sounding in tort. Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 88 (Tex. App. – Houston [1st Dist.] 2005, no pet.). 

Section 95.001(3) defines “property owner” as a person or entity that owns real property primarily used for commercial or business purposes. See e.g. Padron v. L&M Properties, 2003 Tex. App. LEXIS 1229, at *7-8 (Tex. App. – Eastland, 2003, no pet.) (Chapter 95 applied to contractor injured while repairing a satellite dish at a single family residence used as a rental property by a property management company). Courts have interpreted property owners under the statute to include:

Property management companies. Id.

Leasehold owners and owner/operators of oil and gas wells. Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 874-75 (Tex. App. – El Paso 2005, pet. denied); Francis, 130 S.W.3d at 80.

Chapter 95 does not apply to a property owner’s injured employee’s claim.  Whether the injured person is an employee of the property owner or an independent contractor will be decided based upon the common law’s definition of an independent contractor.  See Wilson v. Patel, 2004 Tex. App. LEXIS 2614 at *2-3 (Tex.App. – Austin, 2004, no pet.) (right of control determinative of issue based upon factors including the independent nature of the worker’s business; whether he furnished his own tools and supplies; worker’s right to control the work’s progress, other than the end result; time for which worker is employed; and whether he is paid by the job or by a unit of time).

Chapter 95 is limited to claims arising “from the condition or use of an improvement to real property”. This limitation has not prevented courts from broadly applying the statute.  The courts have found the following to be improvements to real property:

Mineral and oil wells. Francis, 130 S.W.3d at 85; Nagle v. Shelf, U.S. Dist. LEXIS 34759 at *14 (Southern Dist. Texas 2005).

A satellite dish. Padron, 2003 Tex.App. LEXIS at *7.

A television tower. Kelly v. Lin Television of Texas, L.P., 27 S.W.3d 564, 570 (Tex. App. – Eastland 2000, pet. denied).

Air conditioner units. Fisher v. Lee and Chang Partnership, 16 S.W.3d 198, 202 (Tex. App – Houston [1st Dist.] 2000, pet. denied).

Another limitation is that the plaintiff’s injuries must arise from the contractor’s construction, repair, renovation or modification of the improvement.  While the plaintiff’s injuries must relate to the work being performed, the injury-producing defect does not have to be the object of the plaintiff’s work.  The latter standard has all but eclipsed the former.  In Fisher, the plaintiff was injured when he fell from an allegedly defective ladder while climbing onto a roof to fix an air conditioner unit.  Id. at 200.  The court stated that sections 92.002 and 92.003 must be read together to give proper effect to the statute, and held that although the ladder was not the object of plaintiff’s work, the ladder was part of defendant’s unsafe workplace. Id. at 201. See also Francis, 130 S.W.3d at 80 (“failure to provide a safe workplace” language led court to hold that the injury-producing defect need not be the object of the plaintiff’s work); James v. Cousins Props. Tex., L.P., 2008 Tex. App. LEXIS 3966, at *2 (Tex. App. – Austin May 30, 2008, no pet.) (mem. op.) (chapter 95 applied when truck driver who delivered materials to contractor was injured when portable toilet rolled off the loading dock); The Dow Chemical Company v. Abutahoun, 2013 Tex. App. LEXIS 1265, *26-27 (Tex. App. – Dallas Feb. 8, 2013, pet. filed) (section 95.002 does not require that it must be the independent contractor who precipitates the harm); Spears v. Crown Central Petroleum Corp., 2005 U.S. App. LEXIS 9962 (5th Cir. 2005) (Chapter 95 applied where plaintiff injured by tripping on hoses after finishing work and leaving the unit in which his work was performed); contra Hernandez v. Brinker Int’l. Inc., 285 S.W.3d 152, 159 (Tex. App. – Houston [14th Dist.] 2009, no pet.) (Chapter 95 not applicable when air condition repairman fell through the roof because the plaintiff was not repairing or modifying the roof).

In addition to Hernandez, at least one federal district court has refused to apply Chapter 95. In Moore v. Howmet Corp., 2005 U.S. Dist. LEXIS 6317, (Northern Dist. Tex. 2005), the federal court held that Chapter 95 did not apply to the plaintiff who was hired to perform janitorial tasks like vacuuming, cleaning windows and dusting.  Id. at *8-9. The court reasoned that Chapter 95 applies only in those cases where the property owner hires someone with some expertise to repair or renovate an improvement on property. Id.

The defendant has the burden of proving that Chapter 95 applies; once it is determined that Chapter 95 applies, the plaintiff has the burden of proving the control and actual knowledge elements. Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 699 (Tex. App. – Houston [14th Dist.] 2004, pet. denied); see also Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App. – Houston [1st Dist.] 2005, no pet.).  Whether Chapter 95 applies can be raised at any time, including for the first time on appeal. Gorman v. Meng, 335 S.W.3d 797, 803 (Tex. App. – Dallas 2011, no pet.) (citing Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 246 (5th Cir. 2005)).  Since Chapter 95 governs if it is applicable, it does not require an affirmative pleading.  Arsement, 400 F.3d at 246.

Elements of Proof Under Chapter 95

Control is the first element that a plaintiff must prove in order to recover under Chapter 95.  The control must be more than a general right to order the work to start or stop, a right to inspect or to receive progress reports. Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999).  Control can be proven by evidence of an agreement in a contract that gives the property owner a right to control or evidence that the property owner actually exercised control over the independent contractor’s work.  Id. at 159.  A contractual right of control is generally a question of law for the court.   Chi Energy, 156 S.W.3d at 879.  Absent a contractual provision, the plaintiff must prove that the property owner actually controlled the “operative details” of the work and there must be a nexus between the control exercised and the resulting injury. Id. The mere implementation of safety regulations by the premises owner does not prove that the premises owner controlled the manner and means of the independent contractor’s work. Ashabranner v. Hydrochem Industrial Serv., Inc., 2004 Tex.App. LEXIS 2782 (Tex. App. – Houston [14th Dist.] 2004, no pet.); Dyall, 152 S.W.3d at 702 (actual control requires the property owner impose a safety regulation that actually causes or contributes to causing the injury).

Assuming the plaintiff is able to prove control, the plaintiff must also prove that the premises owner had actual knowledge of the danger or condition which caused the injury and failed to adequately warn against it.  Phillips v. Dow Chem. Co., 186 S.W.3d 121, 134-135 (Tex. App. – Houston [1st Dist.] 2005, no pet.).  Constructive knowledge is not sufficient under the statute. Id.

V. STATUS OF THE DEFENDANT

The owner or occupier of the subject property at the time of the injury owes the duties imposed by premises liability.  Clayton W. Williams, Jr., Inc., v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).  An occupier is considered to be the person in control of the property; control is the key issue.  Thornhill v. Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780,788 (Tex. App – Beaumont 1997, writ dism’d). Control can be established by contract, ie. a lease, or by conduct.  Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004).  A general contractor is under the same duty as the owner to keep the premises in a safe condition.  Olivo, 952 S.W.2d at 527.

Current and Former Owners

A current owner who does not have control over the property is not liable for premises liability. Khan, 138 S.W.3d 293. Generally speaking, a prior owner is not liable for a person’s injuries that occur on the premises after the sale of the property.  Kelly, 27 S.W.3d at 571.  A few Texas courts of appeals have relied upon the Restatement (Second) of Torts Section 353 to determine whether a former owner of property can be held liable for premises liability.  See First Financial Dev. Corp. v. Hughston, 797 S.W.2d 286, 290-91 (Tex. App. – Corpus Christi 1990, writ denied); Moeller v. Fort Worth Capital Corp., 610 S.W.2d 857, 861 (Tex. App. – Fort Worth 1980, writ ref’d n.r.e.).  In order to hold a former owner liable under Section 353, the plaintiff must establish that the former owner failed to disclose the dangerous condition or actively concealed it, and that the new owner did not know or have reason to know of the dangerous condition.  First Financial Dev., 797 S.W.2d at 290-91.  In Lefmark Management Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997), the Texas Supreme Court held that Section 353 did not apply to the circumstances of that case and left open the issue of whether it would adopt the Restatement view.

Non-owners

As noted above, a non-owner who exercises control over the premises can be liable under premises liability.  These “occupiers” include tenants, lessees and general contractors. Whenever a lessee is sued for premises liability, the court will review the lease to determine whether the lessee has control of the premises where the injury occurred. See Howe v. Kroger Co., 598 S.W.2d 929, 931 (Tex.App. – Dallas 1980, no writ) (pursuant to lease, store did not control area where injury occurred, therefore, had no duty to repair or warn). However, in Wal-Mart Stores, Inc., v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993), the court found the lessee responsible for a ramp in front of defendant’s store despite the fact that the area was not part of the leased premises because the defendant exercised control over the ramp.

A person who creates a dangerous condition on property may owe a duty under premises liability even though he is not in control of the premises when the injury occurred.  Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997).  Further, a person who agrees to make safe a known dangerous condition on real property owes a duty of due care once he has undertaken the assignment.  Lefmark, 946 S.W.2d at 54.

At least one court has extended the premises liability duty to non-owners even without evidence of control. See Wyckoff v. George C. Fuller Contracting, Co., 357 S.W.3d 157 (Tex. App. – Dallas, 2011, no pet.). In Wyckoff, a visitor at a home sued the homeowner and homebuilder after she fell on the home’s steps. Id. at 164. She asserted a premises liability claim against the homeowner and a general negligence claim against the homebuilder. Id. Although the plaintiff did not contend that the homebuilder owned, occupied or controlled the home at the time of the injury, the court held that the homebuilder owed her the same duty that the homeowner did. Id.; contra Jenkins v. Occidental Chemical Corp., 2013 Tex. App. LEXIS 1469 at *55-56 (Tex. App. – Houston [1st Dist.] Feb. 14, 2013, no pet. h.)

VI. LIABILITY FOR CRIMINAL CONDUCT

The Timberwalk Factors – Invitees

The general rule in Texas is that a property owner does not have a legal duty to protect another from the criminal acts of third parties.  However, there is an exception to this rule which provides that a person who controls the premises does have a duty to use ordinary care to protect invitees from the criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee.  Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). The Texas Supreme Court’s opinion in Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W. 2d 749, 751 (Tex. 1998) sets out factors to consider in determining whether the criminal conduct should have been forseen.  In that case, a tenant was sexually assaulted in her apartment, and she sued the owner of the apartments for failing to provide adequate security.  Id.  There was no evidence of prior assaults at the apartment complex. Id. at 752.  The supreme court held that a premises owner owes a duty to those who may be harmed by criminal acts on the premises when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Id. at 756.  The factors that courts should consider in determining whether the criminal conduct was foreseeable are:

Whether any criminal conduct previously occurred on or near the property (proximity)?

How recently it occurred (recency)?

How often it occurred (frequency)?

How similar the conduct was to the conduct on the property (similarity)? and

What publicity was given the occurrences to indicate that the owner knew or should have known about them (publicity)?

Id. at 759.  After an examination of the evidence relating to these factors, the supreme court concluded that the Defendant did not have a duty due to the lack of forseeability. Id.

General allegations as to the nature of the risk posed, the foreseeability of the result, and the likelihood of the injury will not suffice. Gatten v. McCarley, 2013 Tex. App. LEXIS 838, *12-14 (Tex. App. – Dallas 2013) (affirmed trial court’s dismissal for failure to state a claim due to general allegations).

Proximity

Relating to proximity, it has been held that it is necessary to examine criminal activity in “narrow geographic areas in analyzing the foreseeabililty of criminal conduct. Texas Real Estate Holdings, Inc. v. Quach, 95 S.W.3d 395, 399 (Tex. App. – Houston [1st Dist.] 2003, pet. denied). Evidence of a report from the police department that covered nine square miles was not such a narrow geographic area. Id. A census tract covering 3.5 square miles was appropriate and it showed little crime in the vicinity. Id.

Recency and Frequency

Recency and frequency are often examined in tandem. Trammell Crow Central Texas Ltd. v. Gutierrez, 267 S.W.3d 9, 15 (Tex. 2008). The Supreme Court ruled on the recency factor in Mellon Mortgage Co., 5 S.W.3d at 657. The Court held that a sexual assault was foreseeable when it took place in an area that had witnessed 190 violent crimes in two years, or one violent crime every four days. Id. at 657.  It should be noted that the supreme court ruled the victim was not foreseeable because she had been taken to the subject premises from another location. Id.; See infra at Section VI(B). In Trammell Crow, the Court noted that there had been 10 violent crimes committed over a two-year period, which amounted to one violent crime every 69 days.  Trammell Crow, 267 S.W.3d at 15.  The court stated this was a relatively low rate of violent criminal activity.  Id.

The lack of frequency was one of the issues that led to a reversal of a judgment against a motel owner in Jai Jalaram Lodging Group, LLC v. Leribeus, 225 S.W.3d 238 (Tex. App. – El Paso 2006, pet. denied). While there was a rise in criminal activity over the 2 years prior to the subject armed robbery, the court stated that there was no notable frequency. Id. at 244-45.

Similarity

To find a landowner liable for criminal conduct on his premises, the previous crimes must be sufficiently similar to the subject crime but they do not have to be identical.  Trammel Crow, 267 S.W.3d at 16.  Further, some crimes can make the risk of other crimes foreseeable. Id.  For example, robberies and assaults may make other violent crimes like rape and murder foreseeable. Timberwalk, 972 S.W.2d at 758. However, property crimes like vandalism probably does not make violent crimes foreseeable. Id.  Fights that occurred in the gym did not make a sexual assault in the gym bathroom foreseeable.  Jane Doe 1 v. Pilgrim Rest Baptist Church, 248 S.W.3d 831, 835-36 (Tex. App. – Dallas 2008, pet. denied).

If the plaintiff was a victim of a targeted attack as opposed to a random crime, one court has held that targeted attacks are not the type of conduct that a premises owner should owe a duty to protect against. Palacio v. AON Properties, Inc., 110 S.W.3d 493, 499 (Tex. App. – Waco 2003, no pet.).  Other courts have held that if the crime was random, then only evidence of random crimes should be considered and vice versa. Andrews v. Rodeo Square Apartments, 2006 Tex. App. LEXIS 6415, *15 (Tex. App. – Houston [1st Dist.] 2006, no pet.) (targeted crimes); Texas Real Estate Holdings, Inc. v. Quach, 95 S.W.3d 395, 399-400 (Tex. App. – Houston [1st Dist.] 2002, pet. denied) (random crimes).

Publicity

In determining publicity, the court must determine whether the earlier crimes were widely publicized.  Timberwalk, 972 S.W.2d at 758.  The more publicity the past crimes received, the more likely that a premises owner has notice of them. Id.  This does not mean that a premises owner has a duty to regularly inspect criminal records. Id. at 759.

B. Mellon Mortgage – Was the Victim Foreseeable?

In Mellon Mortgage, the Texas Supreme Court addressed the following question: What role does foreseeability play when someone other than an invitee sues a premises owner for liability based upon a third party’s criminal conduct?  In that case, a police officer stopped a woman, Holder, at night for a traffic violation and instructed her to follow him to a parking garage where he raped her.  Mellon Mortgage, 5 S.W.3d at 654. Holder sued the owner of the parking garage; the trial court granted summary judgment in favor of the parking garage owner and the court of appeals reversed. Id. In a plurality opinion joined by three justices, the supreme court rendered a judgment that Holder take nothing from the parking garage owner; two other justices wrote concurring opinions and three justices joined in the dissent. Id. 

Citing the Timberwalk case, the supreme court noted that in this case the focus would be on the “foreseeability” of the risk. Id. at 655. The supreme court stated that “[f]or most premises liability cases, the foreseeability analysis will be shaped by determining whether the plaintiff was an invitee, a licensee, or a trespasser.” Id.  Holder’s status at the time of the crime was the subject of much debate. In his concurring opinion, Justice Enoch concluded that Holder was a trespasser. Id. at 661-62 (Enoch, J., concurring). The dissenters concluded that she was a licensee. Id. at 673 (O’Neill, J., dissenting).  The plurality opinion written by Justice Abbott and a concurring opinion by Justice Baker addressed liability without determining Holder’s status. Id. at 655 (plurality opinion); see also Id. at 662 (Baker, J. concurring). The plurality noted that because the plaintiff was an “unforeseeable victim regardless of her status,” it was not necessary to determine into which category she fell. Id.  In a footnote, the supreme court stated that this “analysis is complementary, not contradictory, to the traditional premises liability categories.”  Id. fn. 3. 

The plurality opinion applied a threshold foreseeablilty analysis divided into two prongs: the foreseeabililty of the crime and the foreseeability of the victim. Id. at 655. The court applied the Timberwalk factors to determine the first prong, and determined that “it was not unforeseeable as a matter of law that a rape might occur in the parking garage.”  Id. at 657.  The court then considered whether Holder was situated such that the garage owner could foresee that she would be the victim of this third-party criminal act.  Id. Given the fact that the plaintiff was pulled over several blocks away and led to the garage, the supreme court held that she was not a foreseeable victim. Id. at 658.

The Del Lago Opinion

In Del Lago Partners v. Smith, 307 S.W.3d 762, 766 (Tex. 2010), the plaintiff was injured when a fight erupted in the bar of the Del Lago resort between members of a fraternity reunion and a wedding party.  As soon as the members of the wedding party entered the bar, there were confrontations between the two groups.  Id. at 765. Bar employees testified that the men were very intoxicated and that several confrontations between the two groups occurred, including shoving, cursing and yelling. Id. at 765-66.  These altercations continued for nearly 90 minutes, at which time a brawl erupted when the bar employees attempted to close down the bar.  Id. at 766.  The bar employees attempted to “funnel” the men towards a single exit when “all heck broke loose”.  Id. The plaintiff was injured when he was thrown up against the wall.  Id. The plaintiff brought suit alleging premises liability and negligent activity, but the trial court only submitted the premises question to the jury.  Id. at 775.  The jury found in favor of the plaintiff.  Id. at 767.

The supreme court went out of its way to attempt to limit the Del Lago holding to its facts: “We do not announce a general rule today.”  Id. at 770.  The Court cited Timberwalk but noted that the Timberwalk factors should be used where the premises owner has no direct knowledge that criminal conduct is imminent. Id. at 768.  The Court held that because the defendant and its employees were aware of the unreasonable risk of harm to its patrons that night, they had actual knowledge of imminent criminal acts and, therefore, had a duty to reduce or eliminate the risk.  Id. at 769.

Despite the Court’s attempt to limit the application of the Del Lago holding, at least one court has cited the case as standing for the following:  “ a property owner with actual and direct knowledge that violence is imminent has a duty to protect an invitee from imminent assaultive conduct by a fellow patron.”  West v. SMG, 318 S.W.3d 430, 439-42 (Tex. App. – Houston [1st Dist.] 2010, no pet.) (holding that the crime was not foreseeable under Timberwalk and Defendant was not liable under Del Lago because there was no evidence that Defendant had actual knowledge that assault was imminent). 

The current state of the law appears to be that generally, a premises owner has no duty to protect another person from the criminal acts of a third party. Timberwalk, 972 S.W.2d at 756.  When a premises owner has actual and direct knowledge that a crime is imminent, based upon immediately preceding conduct, the premises owner has a duty to reduce or eliminate the risk. Del Lago, 307 S.W.3d at 769.  When the premises owner has no direct knowledge of imminent criminal conduct, the unreasonableness of the risk arising from the conduct will be judged by the Timberwalk factors. Timberwalk, 972 S.W.2d at 757. In circumstances similar to the Mellon Mortgage case, where the victim is not an invitee of the defendant, it appears that the foreseeability of the victim is also considered, as well as the foreseeability of the crime. Mellon Mortgage, 5 S.W.3d at 657.

VII. CONCLUSION

A premises liability case is a negligence action brought by someone who claims to have been injured by some condition on property.  Premises liability shares the elements of duty, breach of duty and proximate cause with negligence but has its own particular requirements that make these cases harder to prove. Therefore, the first question that must be asked is whether the case can be brought under a negligent activity theory. If not, then the status of the injured person will control the duty owed absent a statute or doctrine.  If the plaintiff is an independent contractor (or his employee), then Chapter 95 of the Texas Civil Practices & Remedies Code must be consulted.  In cases involving licensees, the Recreational Use Statute will downgrade the licensee to a trespasser if the statute applies. The attractive-nuisance doctrine may be relevant in cases dealing with trespassing children. The status of the owner of the property must also be determined; control of the property is the determinative factor.  If the allegations involve criminal activity by a third person, the foreseeability of the risk will be the issue and the Texas Supreme Court’s opinions in Timberwalk, Mellon Mortage and Del Lago will be key.

        

Joe Escobedo Jr.

Partner

BBVA Compass Bank Tower

3900 N. 10th Street, Suite 950

McAllen, Texas  78501

Telephone: (956) 618-3357

Telecopier: (956) 618-3361

E-mail:   jescobedo@etclaw.com

Website: www.etclaw.com

AREAS OF PRACTICE

Products Liability and Tort Law

Commercial Litigation

Mediation and Alternative Dispute Resolution

EDUCATION

Pan American University, BA 1986

University of Texas, JD 1989

Certified Mediator, The Center for Public Policy Dispute Resolution, The University of Texas School of Law 2007

ADMISSIONS

Admitted to Texas State Bar 1989

Admitted to practice before the U.S. Court of Appeals, Fifth Circuit

Admitted to practice before the U.S. District Court, Northern and Southern Districts of Texas

Joe Escobedo has devoted his practice to the representation of corporate and individual clients in complex tort and commercial litigation matters. In addition to his trial practice, Joe is a certified mediator.

AWARDS AND ACHIEVEMENTS

Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization

Texas Super Lawyers 2006-2013

AV Rated by Martindale-Hubbell

The College of the State Bar of Texas

Litigation Counsel of America

PROFESSIONAL MEMBERSHIPS & ACTIVITIES

State Bar of Texas

Hidalgo County Bar Association

Texas Bar CLE

American Board of Trial Advocates (ABOTA)

The College of the State Bar of Texas

Texas Minority Counsel Program (TMCP)

PUBLICATIONS AND SPEAKING ENGAGEMENTS

Policy Limits Demands: Strategies, Tactics and Practical Considerations, Advanced Personal 

Pharmaceutical Litigation, Corpus Christi Personal Injury Seminar, Corpus Christi Bar Assn., 2006

Accident Investigations & Preservation of Evidence, Prosecuting or Defending a Trucking Case, Texas Bar CLE, San Antonio, 2007

The Dos & Don’ts of the Civil Trial Practice, Today’s Law Practice: An Attorney Workshop.  Hidalgo County Bar Association, 2009

Case Law Update, Civil Trial Conference 2012, Hidalgo County Bar Association

Paid or Incurred Update, Fifth Judicial Region Judges’ Meeting, 2012

Paid or Incurred Update Webcast, Texas Bar CLE, 2012

Premises Liability and Chapter 95, Advanced Personal Injury Law Course 2013

Director and Officer Liability and Shareholder Oppression, Business Disputes 2013